97*.7L6^  Evans,    Henry   Oliver 

B6Ev!a 

Abraham   Lincoln    as    a 


LINCOLN  ROOM 

UNIVERSITY  OF  ILLINOIS 
LIBRARY 


MEMORIAL 

the  Class  of  1901 

founded  by 

HARLAN  HOYT  HORNER 

and 

HENRIETTA  CALHOUN  HORNER 


ABRAHAM  LINCOLN 

AS  A 

LAWYER 


By 

Henry  Oliver  Evans,  Esq. 


SMITH     BROS.     CO.     INC.,     LAW     PRINTERS,     208-212     GRANT    STREET,     PITTSBURGH,     PA. 


Digitized  by  the  Internet  Archive 

in  2012  with  funding  from 

University  of  Illinois  Urbana-Champaign 


http://www.archive.org/details/abrahamlincolnasOOevan 


I. 


ABRAHAM  LINCOLN  AS  A  LAWYER 


By  Henry  Oliver  Evans,  Esq. 

Abraham  Lincoln  was  licensed  to  practice  law  on  March  24th,  1836, 
and  tried  his  last  important  case,  the  Sand  bar  case,  before  the  United 
States  Circuit  Court  at  Chicago  on  March  19th,  1860. 

With  only  four  months  of  inadequate  schooling,  under  five  separate 
teachers,  no  family  or  cultural  background,  no  influential  friends  or  clients, 
merger  professional  preparation,  loaded  with  debt,  slowly  but  surely  he 
climbed  to  the  leadership  of  the  Illinois  bar,  developed  those  faculties  of 
directness  of  thought,  clarity  of  statement  and  self-control  which  made  him 
the  greatest  American  and  one  of  the  great  men  of  all  time. 

What  led  him  to  choose  the  law?  When  did  this  purpose  come  to 
him?  After  years  of  hard,  patient,  uncomplaining  life  m  Kentucky,  his 
vagrant,  shiftless  father  drifted  to  a  squatter's  cabin  in  Indiana  with  neither 
window  or  floor  when  Lincoln  was  eight  years  old. 

There  Lincoln,  a  youth  of  seventeen,  worked  on  a  ferry  boat  at  the 
mouth  of  Anderson  Creek  and  the  Ohio  River  for  $6.00  a  month  and  board. 
The  next  spring  he  was  back  on  the  Ohio,  building  a  scow  or  light  flat- 
boat  which  he  intended  to  load  with  produce  to  make  a  trip  down  the 
river,  perhaps  to  New  Orleans.  However,  when  the  boat  was  finished  he 
discovered  that  it  was  not  easy  to  obtain  a  cargo  and  the  little  money  that 
he  had  saved  from  his  meager  earnings  during  the  fall  and  winter  was 
gone.  He  would  have  been  in  desperate  straits  had  he  not  obtained  occa- 
sional employment  to  carry  travelers  and  their  baggage  out  to  steamers 
that  had  been  hailed  in  mid-stream.  Many  years  later  he  told  the  story 
to*  Secretary  Seward  and  other  members  of  his  Cabinet,  of  the  first  time 
he  earned  a  dollar  for  less  than  a  full  day's  work. 

He  had  ferried  two  men  and  their  trunks  out  to  a  steamer,  to  whose 
deck  he  had  lifted  their  heavy  trunks.  The  steamer  was  about  to  put  on 
steam  again  when  he  called  out  that  they  had  forgotten  to  pay  him.  Each 
of  them  took  from  his  pocket  a'  silver  half  dollar  and  threw  it  on  the  floor 
of  his  boat.  He  said,  "I  could  scarcely  believe  my  eyes  as  I  picked  up 
the  money.  Gentleman,  you  may  think  it  was  a  very  little  thing  and  in 
these  days  it  seems  to  me  a  trifle,  but  it  was  the  most  important  incident 
in  my  life.  I  could  scarcely  credit  that  I,  a  poor  boy,  had  earned  a  dollar 
in  less  than  a  day — that;  by  honest  work  I  had  earned  a  dollar  when  I  had 
supposed  that  they  would  give  me  four  bits.  The  world  seemed  fairer  and 
wider  before  me.  I  was  a  more  powerful  and  confident  being  from  that 
time." 

But  this  occupation,  strangely  enough,  before  long  brought  him  into 
his  first  acquaintance  with  the  law.  One  day,  just  as  he  had  made  one  of 
these  trips  he  was  hailed  from  the  opposite  side  of  the  river  by  a  man 
named  Dill  who  operated  a  ferry  near  that  point,  and  in  response  to  the 
signal  Lincoln  rowed  over  to  the  Kentucky  shore.  No  sooner  had  his 
boat  touched  the  bank  than  he  was  seized  by  Dill  and  his  brother  who 
had  been  hidden  in  the  bushes,  who  hauled  him  before  a  justice  of  the 
peace.  A  warrant  having  been  sworn  out  charging  infringement  of  a 
ferry  franchise,  the  trial  of  the  case  of  Commonwealth  of  Kentucky 
vs.  A.  Lincoln  proceeded.  The  justice  got  out  his  battered  copy  of 
Littell's  Laws  of  Kentucky:  and  after  studying  it  for  a  few  moments  de- 
livered the  judgment  of  the  Court,  that  the  northern  boundary  of  Ken- 
tucky ran  to  low  water  mark  on  the  Indiana  side  of  the  Ohio;  consequently, 
although  the  alleged  offense  had  been  committed  from  the  far  side  of 
the  river,  the  courts  of  Kentucky  had  jurisdiction.      He  went  on  in  con- 


struing  the  language  of  the  statute — that  one  offending  must  have1  "for  re- 
ward set  any  person  over  any  creek  or  river" — "over"  meant  "across",  and 
since  Lincoln  had  only  taken  passengers  for  hire  out  to  the  middle  of  the 
river,  no  offense  against  the  laws  of  Kentucky  had  been  committed;  there- 
fore, "the  defendant  is  discharged". 

After  the  trial  Lincoln  sat  on  the  porch  for  a  while  talking  to  the 
squire,  who  expressed  the  opinion  that  every  man  would  be  a  better  and 
more  useful  citizen  if  he  possessed  a  general  knowledge  of  the  laws  under 
which  he  lived  and  particularly  those  relating  to  the  business  in  which  he 
was  engaged.  The  squire  invited  him  to  attend  future  sessions  of  his 
court  when  convenient,  and  thereafter,  Lincoln  on  several  occasions  pad- 
dled across  the  Ohio  to  what  was  known  as  "Law  Day"  at  the  squire's 
house.  Following  this  incident,  Lincoln  began  the  study  of  his  nrst  law 
book,  "The  Revised  Laws  of  Indiana,"  which  he  borrowed  from  a  friend 
of  his  who  was  a  constable.  Bound  with  these  statutes  were  the  Declara- 
tion of  Independence,  the  Constitution  of  the  United  States,  the  Constitu- 
tion of  the  State  of  Indiana  and  the  Ordinances  of  1784  and  1787  provid- 
ing that  there  should  be  neither  slavery  or  involuntary  servitude  in  the 
territory  north  of  the  Ohio.  This  original  copy  of  these  statutes  studied 
by  Lincoln  is  still  in  existence. 

Did  this  episode  direct  his  path? 

His  home  at  Gentryville,  Indiana,  was  about  fifteen  miles  from  the 
County  seat  of  Booneville.  Every  term  of  court  was  the  one  great  diversion 
and  intellectual  stimulant  of  the  community,  their  theatre,  lecture  platform, 
common  meeting  place,  center  of  government,  mental  refreshment  and 
recreation.  There  is  evidence  that  the  youthful  Lincoln  witnessed  at  least 
one  hotly  contested  murder  trial  there  and  that  he  was  so  enthused  by  the 
display  of  flaming  eloquence  that  he  sought  out  and  congratulated  one 
Breckenridge,  the  lawyer  for  the  defendant.  "I  felt",  he  remarked  to 
Breckenridge  in  the  White  House  many  years  afterwards,  "that  if  I  could 
ever  make  as  igood  a  speech  as  that  my  soul  would  be  satisfied,  for  it  was 
the  best  I  had  ever  heard." 

Lincoln  had  just  reached  his  majority  when  the  family  again  migrated 
to  Illinois  and  Lincoln  started  in  life. for  himself  in  New  Salem  where, 
while  tending  store,  he  attended  most  of  the  trials  conducted  by  the  local 
Justice  of  the  Peace,  Bowling  Green.  While  studying  law  he  brought  his 
first  suit  in  the  Court  of  Squire  Bowling  Green  representing  the  claimants 
of  a  hog  and  produced  three  witnesses  who  testified  that  the  hog  belonged 
to  them.  Lincoln  argued  that  the  rules  of  evidence  required  a  decision 
according  to  the  preponderance  of  the  proof,  to  which  the  old  squire  re- 
sponded, "Abe,  all  you  say  may  be  true  but  this  court  has  in  mind  another 
rule  of  law  which  says  that  a  case  should  be  decided  according  to  the 
actual  facts.  Now  the  court  knows  these  witnesses  and  he  also  knows 
this  hog.  He  knows  these  witnesses  are  lying  and  personally  knows  this 
shoat  belongs  to  Kelso.     Judgment  for  the  defendant." 

Springfield  was  only  a  few  miles  away  and  there  is  every  reason  to 
believe  that  Lincoln  attended  the  sessions  of  Circuit  Court  there.  Then, 
as  he  himself  says,  "In  the  days  of  the  Black  Hawk  War,  I  fought,  bled 
and  came  away,"  but  not  before  becoming  acquainted  with  his  future  law 
partner,  Major  John  T.  Stuart  of  the  Springfield  Volunteers,  whose  friendly 
advice  and  loan  of  law  books  encouraged  him  to  continue  the  study  of  the 
law.  The  Berry-Lincoln  store  fiasco  which  came  next  had  only  two  redeem- 
ing features — plenty  of  leisure  for  study  and  his  purchase  of  a  set  of 
Blackstone  which  he  found  at  the  bottom  of  a  barrel  of  odds  and/  ends  he 
had  bought,  out  of  the  kindness  of  his  heart,  to  aid  a  passerby.  That  was 
a  red  letter  day  in  his  life  and  we  have  his  own  word  for  it  that  he  literally 
devoured  the  volumes. 

From  this  period  comes  the   characteristic  story  about  a  farmer  who 


had  employed  Lincoln  but  found  him  lying  by  the  road  with  a  book  instead 
of  a  pitchfork  in  his  hands.  "What  are  you  reading?"  the  old  gentleman 
said.  "I'm  not  reading,  I'm  studying,"  Lincoln  replied.  "Studying  what?" 
"Law."     "Great-God-Almighty,"  muttered  the  farmer  as  he  passed  on. 

When  in  a  comparatively  short  space  of  time  Berry  had  drunk  up  the 
liquid  assets  of  the  firm  and  Lincoln  had  sold  or  eaten  the  solid  assets, 
it  was  necessary  for  Lincoln  to  get  some  employment  and  he  was  lucky 
enough  to  get  a  job  as  a  deputy  surveyor  and  then  to  be  elected  to  the 
Legislature  at  the  total  expenditure  of  75  cents.  While  the  salary  of  a 
legislator  was  very  little,  Lincoln's  four  terms  in  the  State  Legislature 
were  of  great  value  to  him  as  a  lawyer.  During  his  first  term  he  had 
leisure  for  his  law  studies,  and  the  practical  experience  with,  and  dis- 
cussion of  statutes  and  the  process  of  forming  legislation  was  useful 
all   his    life. 

Lincoln's  24  years  as  a  practicing  lawyer  may  be  conveniently  divided 
into  three  parts,  corresponding  to  his  participation  in  three  different  part- 
nerships. Although,  as  we  have  seen,  Lincoln  lacked  preliminary  cultural 
or  professional  training  and  influential  and  wealthy  connections,  he  was 
fortunate,  in  differing  ways,  in  each  of  these  three  partners. 

The  first,  John  T.  Stuart,  was  busily  engaged  in  politics,  so  that  Lin- 
coln was  immediately  thrown  on  his  own  resources  in  handling  an  active 
practice  and  was  thus  enabled  to  cut  his  eye  teeth  during  the  four  years 
he  was  a  partner  of  Stuart.  The  library  of  the  firm  consisted  of  the  five 
volumes  of  the  Illinois  reports  and  twenty  volumes  of  miscellaneous  law 
books,  legislative  reports  and  congressional  reports,  but  the  citations  in 
his  later  cases  shows  that  he  made  good  use  of  the  Supreme  Court  library 
at  the  Capitol.  Later  in  life,  Lincoln  recommended  to  a  prospective  stu- 
dent that  he  should  read,  without  an  instructor,  Blackstone,  Chitty's  Plead- 
ings, Greenleaf's  Evidence,  Story's  Equity  and  Story's  Equity  Pleading 
and  "still  keep  reading — work,  work,  work." 

Both  of  these  conditions,  that  is,  being  thrown  on  his  own  resources 
and  the  lack  of  outside  aids,  were  advantages  in  that  they  forced  him  to 
learn  and  follow  the  fundamentals  which,  after  all,  every  good  lawyer 
must  do.  We  must  all  face  the  fact  today  that  it  is  difficult  to  see  the 
forest  for  the  trees.  As  a  result  of  these  conditions,  Lincoln  did  not  be- 
come, as  so  many  lawyers  do,  "case-ridden,"  did  not  cease  to>  reason  for 
himself,  did  not  yield  his  judgment  to  precedent  and  become  a  mere  parrot 
of   decisions. 

Lincoln  appeared  in  seven  cases  in  the  Supreme  Court  of  Illinois  while 
with  Stuart.  That  Lincoln  acquitted  himself  well  we  may  safely  assume  from 
the  fact  that  he  was  singled  out  for  a-  partnership  by  Stephen  T.  Logan,  the 
best  nisi  prius  lawyer  in  his  district,  a  former  judge  who,  after  he  left 
the  bench,  was  engaged  on  one  side  or  the  other  of  practically  every  case 
in  the  Supreme  Court.  Logan  knew  Lincoln's  power  because  Lincoln 
had  beaten  him  in  every  case,  three  in  number,  in  which  they  had  met  in 
the  Supreme  Court. 

One  of  these  cases,  Bailey  vs.  Cromwell,  4  111.  71,  involved  an  important 
principle  and  was  otherwise  calculated  to  inspire  each  man  to  his  very 
best  effort,  although  neither  could  possibly  have  dreamed  that  it  was  to 
have  a  place  in  history  as  the  first  contest  touching  slavery  in  which  the 
Great  Emancipator  was  engaged.  Lincoln  represented  Bailey,  who  had 
given  a  promissory  note  to  Cromwell  in  payment  of  the  purchase  price 
of  a  negro  girl  named  Nance  whom  Cromwell  had  covenanted  was  a 
slave.  When  the  note  matured  Lincoln  set  up  the  defense  that  Nance 
was  not  a  slave,  but  after  a  hot  fight  Lincoln  was  beaten.  He  appealed 
to  the  Supreme  Court,  his  contention  was  sustained,  the  Lower  Court  was 
reversed,  thus  automatically  freeing  the  girl.  This  case  has  been  cited 
by  other  judges  at  least  18  times. 


Until  that  time  Lincoln  had  been  a  lazy  lawyer,  that  is,  he  had  been 
inclined  to  trust  more  to  native  wit  and  the  spur  of  the  moment  than  to 
careful  preparation — always  a  dangerous  practice — but  this  was  all  changed 
now.  Logan  was  not  only  a  well  trained  lawyer  but  he  had  the  habit  of 
•continued  and  consistent  study,  as  may  be  seen  from  the  fact  that  he 
made  a  practice  of  reading  Blackstone  from  beginning  to  end  each  year 
until  he  was  60,  just  as  Rufus  Cihoate  made  a  practice  of  briefing  both 
sides  of  every  case  in  the  Supreme  Court  of  Massachusetts  in  which  he 
was  not  himself  engaged.  No  less  than  7  distinguished  lawyers  and 
statesmen,  4  United  States  senators  and  3  governors  were  developed  in 
Logan's  office  in  later  years.  Logan  was  orderly  and  methodical  in  all 
his  ways,  industrious  to  a  fault,  ambitious  to  make  money  and  a  money- 
maker, wholly  absorbed  in  his  profession.  Lincoln  undoubtedly  studied 
and  adopted  his  partner's  methods  of  study  and  preparation  because  he 
tells  us  that  from  that  time  on  he  was  never  taken  by  surprise  either  in 
his  own  or  his  opponent's  case.  The  firm  of  Logan  and  Lincoln  had  36 
cases  in  the  Supreme  Court  of  Illinois  in  the  three  years  of  its  existence. 

One  of  the  characteristic  Lincoln  stories  is  of  a  case  in  which  he 
said  to  the  jury,  "Gentlemen,  you  must  be  careful  and  not  permit  your- 
selves to  be  overborne  by  the  eloquence  of  counsel  for  the  defense.  Judge 
Logan,  I  know,  is  an  effective  lawyer.  I  have  met  him  too  often  to 
doubt  that.  But  shrewd  and  careful  though  he  be  still  he  can  sometimes 
be  wrong.  Since  this  trial  began  I  have  discovered  that,  with  all  his 
caution  and  fastidiousness,  he  hasn't  knowledge  enough  to  put  his  shirt 
on  right,"  referring  to  the  fact  that  Logan  had  put  on  his  shirt  with  the 
plaited  bosom  behind. 

This  story  is  somewhat  like  the  story  of  our  own  celebrated  Jeremiah 
S.  Black  who  was  very  absent-minded.  On  one  occasion,  when  he  was 
leaving  on  a  trip,  Mrs.  Black  said  to  him,  "I  have  put  in  a  clean  shirt  for 
each  day  of  your  absence  and  I  wish  you  would  promise  me  that  you  will 
remember  to  use  a  fresh  one  each  day."  Mr.  Black  promised  faithfully 
but  when  he  returned  Mrs.  Black  could  find  none  of  his  shirts  in  his  bag, 
and  it  was  then  discovered  that  he  had  carried  out  his  promise  literally 
and  then  had  on  his  back  three  shirts. 

By  the  early  part  of  1844  Lincoln  had  outgrown  the  position  of  a 
junior  partner,  had  become  strong  enough  to  take  the  place  of  leader  to 
which  he  had  always  aspired  and  which  he  had  earned  and,  accordingly, 
took  in  William  H.  Herndon  as  a  junior  partner  and  hung  out  the  sign 
of  Lincoln  and  Herndon  which  still  remained  on  the  day  of  Lincoln's 
death.  While  Herndon  did  not  compare  as  a  lawyer  with  his  other  part- 
ners, he  was  useful  in  relieving  Lincoln  of  the  drudgery  of  the  office,  in 
freeing  him  for  his  most  active  years  on  the  Circuit  and,  through  Hern- 
don's  interest  in  and  acquaintanceship  with,  literature  and  general  culture, 
was  of  assistance  to  Lincoln  in  his  public  life. 

With  the  exception  of  the  time  of  the  period  of  his  one  term  in  Con- 
gress, Lincoln  not  only  tried  cases  at  Springfield  and  the  adjoining  coun- 
ties but  habitually  followed  the  itinerant  court  held  in  the  8th  Judicial 
Districts  of  fifteen  counties  extending  over  150  square  miles.  There  were 
no  railroads  until  about  1854,  so  that  the  Court  and  lawyers  traveling  the 
circuit  went  by  horseback  or  in  carriages.  As  soon  as  the  frost  was  out  of 
the  ground  enough  for  travel,  for  about  six  months  of  the  year  Lincoln 
followed  Judge  David  Davis,  afterwards  Associate  Justice  of  the  United 
States,  with  whom  he  was  a  great  favorite.  The  Judge  was  a  Falstaff  in 
size  and  took  great  delight  in  Lincoln's  vivid  sense  of  humor. 

On  one  occasion  while  going  over  the  docket,  Davis  came  upon  a  long 
bill  in  chancery  drawn  by  an  excellent  but  lazy  lawyer.  "Why,  Brother 
Snap,"  he  said,  "How  did  you  rake  up  enough  energy  to  get  up  such  a 
long  bill?"     "Dunno,  Judge,"  Snap  said.     Davis  then  said,  "What  do  you 


think  about  it,  Lincoln?  Wonderful,  eh?"  "Well,"  Lincoln  said,  "It's 
like  the  lazy  preacher  who  used  to  write  long  sermons  and  the  explana- 
tion was  that  he  got  to  writing  and  was  too  lazy  to  stop."  A  lawyer 
friend  told  Lincoln  that  he  thought  Lincoln  took  too  much  counsel 
with  Davis.  Lincoln  illustrated  the  position  by  the  story  about  what 
are  called  "side"  judges,  that  is,  associate  judges  not  learned  in  the  law 
who  sit  with  a  president  judge  who  is  learned  in  the  law.  Someone  asked 
one  of  the  "side"  judges  if  the  president  judge  ever  consulted  him.  He 
said,  "Oh,  yes."  "Well,  what  does  he  consult  you  about?"  "Well,  the 
other  day  when  he  came  off  his  bench  he  asked  me,  'Don't  these  hard 
wooden  benches  make  your  back-side  ache?'" 

The  evenings  were  spent  by  the  crowd  of  judge,  lawyers,  clients,  wit- 
nesses and  local  celebrities  in  story  telling,  long  and  complicated  argu- 
ments and  social  gatherings  given  by  the  people  in  the  County  Seat,  be- 
cause court  term  was  the  big  time  of  the  year.  On  all  of  these  occasions 
Lincoln  was  a  prime  favorite  but  life  on  the  circuit  was,  at  the  same  time, 
an  opportunity  to  him  for  continued  and  strenuous  study;  for  instance,  he 
mastered  Euclid  in  the  midst  of  the  conversation  of  half  a  dozen  men 
in  his  room.  Although  the  others  grumbled  at  the  hardships  and  incon- 
veniences, Lincoln  alone  traveled  the  whole  circuit  and  never  missed  a  ses- 
sion. In  spite  of  the  fact  that  judge  and  lawyer  slept  in  one  bed,  with 
sometimes  three  or  four  beds  in  one  room,  in  spite  of  the  poorly  cooked 
food  and  the  hard  beds  of  the  dingy  inns,  Lincoln  was  amused  by  the  free- 
dom, the  long  days  in  the  open  air,  the  meeting  with  new  people,  the  com- 
radeship with  his  companions,  the  nights  spent  in  story  telling  and  discus- 
sion of  religion,  history,  politics  and  any  and  every  subject  which  might 
be  broached. 

When  we  compare  the  leisurely  conditions  of  that  day  with  the  ten- 
sion of  our  present  professional  life,  we  sigh  for  the  good  old  days  and 
echo  Horace's  great  second  Epode: 

"Beatus   ille    qui   procul   negotiis 
Ut  prisca  gens  mortalium 
Paterna  rura  bobus  exercet  suis 
Solutus   moni  faenore." 

"Happy  the  man,  in   busy  schemes  unskilled, 

Who,    living   simply,   like   our  sires    of   old, 
Tills   the  few  acres  which   his   father  tilled, 

Vexed  by  no  thoughts  of  usury  or  gold; 
The  shrilling  clarion   ne'er  his  slumber  mars, 

Nor   quails   he   at  the   howl   of  angry   seas; 
He  shuns  the  forum,   with  its   wordy  jars 

Nor  at  the  great  man's  door  consents  to  freeze." 

The  men  with  whom  Lincoln  competed  were  of  no  ordinary  stamp. 
One  of  these  was  Stephen  A.  Douglas  and  with  him  Lincoln  was 
in  opposition  from  early  life.  Douglas  began  as  a  Democrat,  Lincoln  as 
a  Whig.  Douglas  became  State's  Attorney  at  22  and  Judge  at  28,  before 
Lincoln  got  a  start.  Both  of  them  began  their  political  life  in  the  Illinois 
Legislature,  both  were  in  Congress,  they  were  rivals  for  the  Senatorship 
and  Presidency.  It  is  even  said  that  Lincoln  cut  Douglas  out  in  the  race 
for  Mary  Todd's  hand.  No  greater  contrast  could  be  imagined  than  be- 
tween these  two.  Douglass  was  short,  round,  dapper  and  winsome;  Lin- 
coln, tall,  lean  and  unmindful  of  dress,  at  first  sight  unprepossessing. 
Douglas  was  bold,  dramatic,  quick  and  ardent  in  speech,  a  master  of 
spohistry  and  without  humor.  Lincoln  relied  on  argument  and  persuasion, 
was   cautious,   keen  to   detect   fallacy  and   loved   humor. 


Others  in  this  notable  group  were  Yates  and  Oglesby,  afterwards 
famous  Governors;  Leonard  Swett  and  John  M.  Palmer,  famous  lawyers; 
E.  D.  Baker,  afterwards  Senator  from  Oregon,  leader  of  the  California 
bar,  who  died  at  the  battle  of  Ball's  Bluff;  McDougall  and  Trumbull, 
United  States   Senators,  and  other  men  of  mark. 

Judge  Davis,  who  was  one  of  the  prime  movers  in  Lincoln's  nomina- 
tion at  the  Chicago  Convention  and  most  competent  to  judge,  testifies 
that  Lincoln  was  the  strongest  man  before  a  jury  he  had  ever  heard. 
Lincoln's  cardinal  rule  in  trials  was,  "Don't  shoot  too  high.  Aim  low. 
If  you  aim  too  high  your  ideas  will  go  over  the  heads  of  the  masses  and 
only  hit  those  who  do  not  need  hitting."  He  was  a  great  believer  in  plain 
language.  An  exponent  one  day  quoting  to  a  jury  some  law  Latin,  turned 
to  Lincoln — perhaps  with  the  idea  of  belittling  him — and  said,  "Isn't  that 
so,  Mr.  Lincoln?"  Lincoln  said,  "If  that's  Latin,  you'll  have  to  call  an- 
other witness."  When  he  criticized  the  "fine  writing"  of  a  historian  and 
he  was  told  that  "the  author  of  that  history  is  one  of  the  profoundest 
scholars  of  the  age;  indeed  it  may  be  doubted  whether  any  man  of  our 
generation  has  plunged  more  deeply  into  the  sacred  fount  of  learning," 
Lincoln  drawled,  "Yes,  or  come  up  drier!"  When  the  public  printer 
objected  to  his  use  of  the  word  "sugar-coated"  in  one  of  his  State 
papers,  Lincoln  said,  "Well,  Defrees,  if  you  think  the  time  will 
ever  come  when  the  people  will  not  understand  what  'sugar-coated' 
means,  I'll  alter  it;  otherwise  I  think  I'll  let  it  stand." 

Lincoln  excelled  in  the  most  difficult  part  of  jury  trials,  the  art  of 
cross-examination.  He  had,  of  course,  differing  ways  of  handling  wit- 
nesses. When  he  thought  them  honest  and  unassuming,  his  first  thought 
was  to  put  the  witness  at  ease.  Thus  in  the  famous  Armstrong  murder 
case,  he  asked  a  young  man,  "What  is  your  name,  my  boy?"  "William 
Killian."  "Bill  Killian,"  Lincoln  said,  "tell  me,  are  you  a  son  of  old  Jake 
Killian?"  "Yes,  sir."  Lincoln  said,  in  an  aside.  "WTell,  you  are  a  smart 
boy  if  you  take  after  your  dad!"  With  such  a  witness  he  soon  established 
a  footing  such,  that  the  witness  was  resolved  not  to  say  anything,  if  pos- 
sible, to  hurt  Lincoln's  case. 

When  he  had  a  bumptious,  "smart"  witness  he  did  not,  as  many  do, 
give  him  undue  importance  by  attacking  him  vigorously,  but  flanked  him 
by  good  humor.  He  was  defending  a  case  of  assault  and  battery  where 
he  had  no  testimony  to  offer.  The  complainant  told  a  horrible  story  of 
attack,  during  which  Lincoln  observed  that  the  witness  seemed  one  who 
would  pride  himself  on  his  skill  at  repartee,  so  after  looking  him  over  for 
a  few  minutes,  Lincoln  said,  "Well,  my  friend,  how  much  ground  did 
you  and  my  client  here  fight  over?"  "About  six  acres,"  said  the  "wise- 
cracker."  "Well,"  said  Lincoln,  "don't  you  think  this  is  an  almighty 
small  crop  of  fight  to  gather  from  such  a  big  piece  of  ground?" 

In  another  case  which  depended  on  whether  a  fence  was  sufficiently 
tight  to  keep  out  ordinary  stock,  he  told  a  story  about  a  fence  which  was 
so  crooked  that  when  a  hog  went  through,  invariably  it  came  out  on  the 
same  side  it  went  in.  His  description  of  the  surprise  of  the  hog  was  so 
funny  that  though  he  did  not  apply  it  to  the  facts  in  his  case,  it  covered 
the  fact  that  his  testimony  was  weak  and  the  jury  found  for  him.  The 
impression  is  general  that  Lincoln  was  a  buffoon  but  it  will  be  found,  as 
he  said  himself,  that  his  stories  were  told  with  a  purpose,  not  for  applause 
or  amusement  but  to  illustrate  a  point  or  relieve  tension. 

A  jury  trial  is,  in  one  sense,  enacting  a  play  and  in  another,  painting 
a  picture;  that  is,  the  actions  Of  the  witness  and  counsel  have  an  Uncon- 
scious effect  on  the  audience,  the  jury,  and  the  questions  and  answers, 
when  put  into  cold  type,  are  the  drawing  and  colors  which  should  repro- 
duce the  witnesses  to  the  appellate  court  if  it  has  occasion  to  renew  the 
case.  No  one  made  better  use  of  this  fact  than  Lincoln.  Lincoln  defended 
a  suit  for  $10,000  for  slander,  which  was  a  very  common  cause  of  action 

8 


in  that  day.  When  he  came  to  open  his  case  he  picked  up  the  declara- 
tion, looked  at  it  long  enough  to  attract  attention,  smiled  a  little,  then 
put  it  down.  When  he  had  repeated  this  the  second  and  third  time  his 
opponent  was  incautious  enough  to  ask  what  the  joke  was,  whereupon 
Lincoln  said  that  he  was  amused  at  noticing  that  the  amount  of  damages 
claimed  had  first  been  written  in  at  $1,000  and  then  changed  to  $10,000, 
he  supposed,  after  the  plaintiff  had  read  the  dire  allegations  of  damage 
done  to  his  reputation. 

He  rarely  took  offense  at  the  conduct  of  his  opponent.  One  day  on 
the  voir  dire  his  opponent  attempted  to  ask  the  jurors  whether  they  knew 
Lincoln.  Judge  Davis  soon  stopped  him,  saying  that  Mr.  Lincoln  was 
so  highly  esteemed  that  he  would  not  allow  such  questions.  When  Lincoln 
came  to  examine)  the  jurors,  and  asked  the  same  questions,  the  Judge 
stopped  him  also,  saying  that  he  had  ruled  on  that  matter  before  and  that 
it  made  no  difference  whether  or  not  the  juror  knew  his  opponent.  Lin- 
coln said,  "But  that's  not  what  bothers  me,  your  Honor.  What  I'm  afraid 
of  is  that  the  jurors  do  not  know  him."  But  when  his  honor  was  assailed 
he  immediately  took  unbrage.  One  of  his  opponents,  addressing  the  jury, 
said,  "you  have  been  listening  for  the  last  hour  to  an  actor  who  knows 
well  how  to  play,  for  effect,  the  role  of  seeming."  Lincoln,  furiously 
angry,  interrupted,  "You  have  known  me  for  years  and  you  know  that 
not  a  word  of  that  language  can  be  truthfully  applied  to  me."  Part  of 
what  the  opponent  said  was,  "I  take  it  all  'back,  Mr.  Lincoln." 

Lincoln's  honesty  and  integrity  as  a  lawyer  was  questioned  only  once. 
In  1853,  just  as  the  amount  due  Mrs.  Lincoln  from  the  estate  of  her 
father,,  Robert  S.  Todd,  was  being  paid  to  her  attorneys,  suit  was  brought 
against  Lincoln  by  the  surviving  partners  of  a  business  in  Kentucky,  in 
which  Mr.  Todd  had  an  interest,  for  the  proceeds  of  accounts  alleged  to 
have  been  collected  by  Lincoln  and  retained  by  him.  It  became  evident 
that  his  brother-in-law,  who  had  fallen  out  with  his  sisters  over  advance- 
ments he  said  had  been  made  to  them  by  their  father,  was  the  influence 
behind  the  suit.  Lincoln  never  rested  until  this  ghost  was  laid.  Lincoln 
took  the  offensive,  defeated  the  dilatory'  tactics  and  moves  for  delay  of  the 
plaintiffs,  forced  a  bill  of  particulars  and  when  it  was  finally  filed,  dis- 
proved affirmatively  every  allegation,  with  the  result  that  plaintiffs  them- 
selves filed  a  motion  to  dismiss  at  their  own  cost. 

The  salient  characteristic  of  Lincoln,  as  of  all  great  lawyers,  was  his 
honesty.  When  a  storekeeper,  he  had  been  known  to  walk  miles  to  cor- 
rect a  small  mistake  in  change;  he  had  worked  for  14  years  to  pay  off, 
principal  and  interest,  the  debts  accumulated  by  the  firm  of  B'erry  &  Lin- 
coln. This  was  an  unusual  trait  in  that  pioneer  country,  where  delinquent 
debtors  often  disappeared;  he  was  rightfully  called  "Honest  Abe."  But 
many  are  honest,  financially,  who  do  not  have  the  higher  type  of  intel- 
lectual honesty,  high  ideals  which  Lincoln  possessed  in  so  great  a  degree. 

He  said,  "Discourage  litigation.  Persuade  your  neighbors  to  com- 
promise wherever  you  can.  Point  out  to  them  how  the  nominal  winner 
is  often  a  real  loser,  in  fees,  expenses  and  waste  of  time.  As  a  peace- 
maker the  lawyer  has  the  great  opportunity  of  being  a  good  man.  There 
will  still  be  business  enough."  Again  he  said,  "There  is  a  vague 
popular  belief  that  lawyers  are  necessarily  dishonest  *  *  *  Let  no 
young  man  choosing  the  law  for  a  calling,  for  a  moment  yield  to  the 
popular  belief  *  *  *.  Resolve  to  be  honest  at  all  events ;  and  if  in 
your  own  judgment  you  cannot  be  an  honest  lawyer,  resolve  to  be 
honest  without  being  a  lawyer.  Choose  some  occupation  other  than  one 
in  the  choosing  of  which  you  do,  in1  addition,  consent  to  be  a  knave." 

On  one  occasion  when  he  had  brought  suit  on  behalf  of  a  rapscallion 
for  some  money  he  claimed  was  due  him  and  the  other  side  produced 
a  receipt,  he  left  the  court  room.     When  the  judge  sent  to  the  hotel  for 


him  to  continue,  he  said,  "Tell  the  judge  that  I  can't  come;  I  have:  to 
wash  my  hands."  As  is  the  case  with  many  lawyers,  he  had  to  believe  his 
client  innocent  in  order  to  be  an  effective  advocate.  He  said  to  an  asso- 
ciate, "The  man  is  guilty.  You  defend  him;  I  cannot.  If  I  try  to  speak, 
the  jury  will  see  that  I  think  he  is  guilty  and  convict  him."  Perhaps  this 
trait  explains  the  apparent  record  that  he  never  lost  a  criminal  case  be- 
cause none  of  his  appeals  in  the  Supreme  Court  are  of  a  criminal  case. 
It  may  be,  also,  that  this  trait  is  the  source  of  the  claim  made  that 
Lincoln  would  not  make  use  of  what  are  called  ''technicalities." 

Lincoln  was  too  good  a  lawyer  not  to  know  and  believe  that 
more  injustice  would  result  from  a  loose,  "catch-as-catch-can"  method 
than  from  rules  based  on  reason  and  experience  and  you  will  find, 
from  his  first  case  to  his  last,  that  he  took  advantage,  in  civil 
cases,  at  least,  of  every  legitimate  defense,  many  of  them  what  are 
called  "technicalities."  He  did,  however,  have  a  keen  and  vivid  sense 
of  justice  as  superior  to  the  technical  rules  of  the  law.  He  brought  suit 
once  against  the  Snow  brothers  who  interposed  the  defense  of  infancy  at 
the  time  of  making  the  note.  When  it  was  proved  that  the  brothers  were 
minors  and  that  Lincoln's  client  knew  this  at  the  time  of  accepting  the 
note,  Lincoln,  in  his  characteristic  phrase,  "Yes,  gentlemen,  I  reckon 
that's  so,"  admitted  this.  The  act  which  permitted  minors  to  plead  in- 
fancy as  a  defense  was  read  and  admitted  in  the  same  manner.  Lincoln 
offered  no  evidence,  listened  to  his  opponent's  argument  to  the  jury  and 
then  said: 

"Gentlemen  of  the  jury,  are  you  willing  to  allow  these  boys  to  begin 
life  with  this  shame  and  disgrace  attached  to  their  character?  If  you  are, 
I  am  not.  The  best  judge  of  human  character  that  ever  wrote  has  left 
these  immortal  words  for  us  to  ponder: 

"Good  name  in  man  or  woman,  dear  my  lord, 

Is  the  immediate  jewel  of  their  souls: 

Who  steals  my  purse  steals  trash;  'tis  something,  nothing, 

'Twas  mine,  'tis  his,  and  has  been  slave  to  thousands; 

But  he  that  filches  from  me  my  good  name 

Robs   me  of  that   which   not   enriches   him 

And  makes  me  poor  indeed." 

Then  rising  to  his  full  height,  and  looking  upon  the  defendants  with 
the  compassion  of  a  brother,  his  long  arm  extended  toward  the  opposing 
counsel,  he  continued:  "Gentlemen  of  the  jury,  these  poor  innocent  boys 
would  never  have  attempted  this  low  villainy  had  it  not  been  for  the  advice 
of  these  lawyers."  Then  for  a  few  minutes  he  showed  how  even  the  noble 
science  of  law  may  be  prostituted.  With  a  scathing  rebuke  to  those  who 
thus  belittle  their  profession,  he  concluded:  "And  now,  gentlemen, 
you  have  it  in  your  power  to  set  these  boys  right  before  the  world." 
He  pleaded  for  the  young  men  only;  he  did  not  mention  his  client's 
name.  The  jury,  without  leaving  their  seats,  decided  that  the  de- 
fendants must  pay  the  debt;  and  the  latter,  after  hearing  Lincoln,  were 
as  willing  to  pay  it  as  the  jury  were  determined  they  should.  The  entire 
argument  lasted  not  above  five  minutes. 

This  high  standard  of  honesty  makes  particularly  atrocious  and  un- 
just the  slander  which  is  sometimes  heard  to  the  effect  that  Lincoln  was 
guilty  of  sharp  tricks  in  practice.  This  false  idea  rises  from  the  celebrated 
Armstrong  murder  case.  When  Lincoln  was  clerking  at  New  Salem  he 
had  won  the  admiration  and  respect  of  the  rough  Clary's  Grove  Gang 
by  flooring  their  leader,  Jack  Armstrong,  in  a  wrestling  match.  In  the 
midst  of  the  Lincoln-Douglas  debates,  the  son  of  Jack  Armstrong  called 
"Duff"  was  to  be  held  for  murder.  Duff  was  a  youth  of  bad  habits  and 
while  under  the  influence  of  liquor  had  quarreled  with  and  severely  beaten 

10 


a  young  man  named  Metzker.  Later  the  quarrel  was  renewed,  one  Nor- 
ris  joined  in  the  fracas  and  between  Armstrong  and  Norris,  Metzker  re- 
ceived injuries  from  which  he  died.  Norris  was  tried,  convicted  of  man- 
slaughter and  sentenced  to  eight  years. 

Under  the  law  of  Illinois  at  that  time,  Armstrong  could  not  testify, 
but  Lincoln  so  ingratiated  himself  with  the  witnesses  that  no  strong  testi- 
mony was  given  against  Armstrong  until  a  man  named  Allen  testified 
that  he  actually  saw  defendant  strike  the  fatal  blow  with  a  slung  shot 
or  some  such  weapon,  and  when  Lincoln  forced  him  strongly,  located  the 
hour  at  about  11  at  night.  When  Lincoln  asked  how  he  managed  to  see 
so  clearly  at  that  hour  although  he  was  150  feet  away,  Allen  said,  "By  the 
moonlight"  and  asserted  that  the  moon  was  about  full.  Lincoln  immedi- 
ately produced  an  almanac  showing  that  the  moon  was  only  slightly  past 
its  first  quarter,  gave  practically  no  light  at  11  o'clock  and  set  at  seven 
minutes  after  midnight.  A  curious  myth  has  existed  ever  since  that  the 
almanac  Lincoln  produced  was  one  of  another  year  altered  to  fit  the  case. 
The  fact  is  that  any  almanac,  copies  have  now  been  unearthed,  would 
have  shown  just  what  was  proven,  not  to  speak  of  the  improbability  of 
foisting  an  altered  almanac  upon  judge,  lawyers  or  jury. 

If  his  client  was  poor  or  his  sympathies  were  aroused,  he  refused 
pay  for  his  servides,  as  for  instance,  in  the  famous  Armstrong  murder 
case.  But  his  attitude,  generally,  as  to  fees  was  the  despair  of  the  bar 
and  even  aroused  the  censure  of  the  bench.  He  wrote  once  to  a  client 
who  had  sent  him  $25  as  a  fee  for  services  in  connection  with  the  lease 
of  a  valuable  hotel  property  in  Quincy,  "You  must  think  I  am  a  high 
priced  man.  You  are  too  liberal  with  your  money.  Fifteen  dollars  is 
enough  for  the  job.  I  send  you  a  receipt  for  $15  and  return  a  ten  dollar 
bill. 

On  another  occasion,  Stephen  A.  Douglas  had  collected  $600  for  a 
client  and  gone  off  to  Washington  without  remitting.  The  client  was 
recommended  to  go  to  Lincoln.  Lincoln  wrote  to  Douglas  who  answered 
very  indignantly  direct  to  the  client  remonstrating  against  his  having 
given  the  case  to  Lincoln  but  not  going  so  far  as  to  remit.  Lincoln  then 
sent  the  claim  to  "Long  John"  Wentworth,  a  fellow  Congressman  who 
collected.  The  client  afterwards  said,  "What  do  vou  suppose  he  charged 
me?     $3.50." 

A  rich  newcomer  in  town  wanted  Lincoln  to  sue  an  unlucky  crack- 
brained  lawyer  for  $2.50.  Lincoln  advised  him  to  hold  off  but  on  the 
client's  telling  him  that  he  would  go  to  another  lawyer,  Lincoln  took  the 
case,  collecting  a  $10  fee  in  advance.  He  entered  suit,  then  hunted  up  the 
defendant,  gave  him  $5  and  told  him  to  show  up  in  court  and  pay  up,  so 
that  everybody  was  happy. 

In  one  case  where  his  associate  collected  a  fee  of  $500,  he  objected 
and  forced  him  to  return  $250.  The  largest  retainer  Lincoln  ever  re- 
ceived was  $500,  in  the  McCormick  reaper  patent  case,  in  which  his  total 
fee  was  $2,000,  and  the  largest  fee  he  ever  received  was  $5,000  in  the 
Illinois  Central  Railroad  tax  case.  His  smallest  known  retainer  was  $2.80. 
Many  of  Lincoln's  letters  have  to  do  with  the  question  of  fees.  On  the 
other  hand,  Lincoln  was  not  slow  to  collect  such  fees  as  he  earned,  as 
is  shown  by  a  characteristic  letter,  "I  have  news  from  Ottawa  that  we  win 
our  Gallatin  and  Saline  County  case.  As  the  Dutch  justice  said  when  he 
married  folks,  'Now  vere  ish  mein  hundert  tollars.'  " 

Nor  was  Lincoln  averse  to  being  a  plaintiff  and  suing  to  collect  fees, 
because  the  record  shows  seven  suits  by  him  for  that  purpose,  in  one  of 
which  he  compromised  the  claim  for  half  his  original  fee. 

Lincoln,  however,  experienced  also  the  sensation  of  being  a  defend- 
ant.    We  have  already  mentioned  his  first  experience  as  a  defendant,  the 

11 


only  one  in  which  he  had  to  do  with  the  penal  code,  the  case  of  Common- 
wealth of  Kentucky  vs.  A.  Lincoln. 

One  of  these  cases  had  to  do  with  the  first  legal  document  Lincoln 
ever  drew  which  'was  a  bond  for  $150  to  secure  the  conveyance  of  a  lot 
in  New  Salem.  Unfortunately,  he  ignored  the  'cardinal  theory  that 
as  a  lawyer  he  should  not  'become  surety  for  the  (business  engage- 
ments of  his  client,  by  being  both  draftsman  and  surety  on  this  bond  and, 
as  is  usual  with  such  transactions,  came  to  grief.  Those  for  whom  he'  be- 
came surety  were  David  Rutledge,  brother  of  Ann  Rutledge  and  William 
Green. 

Green  had  been  a  fellow  store  clerk  and  afterwards  "buddy"  in  the 
Black  Hawk  War,  and  it  was  through  his  influence  that  Lincoln  was 
chosen  Captain  of  his  company,  his  first  elective  office.  As  with  others, 
Lincoln  never  forgot  Green  or  his  loyalty  and  friendship  when  friends 
were  needed.  During  the  war  he  appointed  him  Collector  of  Internal 
Revenue  at  Peoria  and  called  him  to  Washington  for  a  conference.  There 
Lincoln,  after  greeting  his  old  friend  warmly,  turned  to  Seward,  then 
Secretary  of  State,  and  said,  "Seward,  shake  hands  with  Bill  Green  of 
Illinois,  the  man  who  taught  me  grammar."  Considerably  embarrassed 
by  this  statement,  Green,  whose  langauge  was  often  far  from  grammatical, 
refrained  from  conversation  in  Seward's  presence  for  fear  that  statesman 
would  discover  that  deficiency  which  he  thought  might  reflect  on  the 
President,  but  when  Seward  had  gone  Green  turned  to  Lincoln  and  said, 
"Abe,  what  did  you  mean  by  telling  Mr.  Seward  that  I  taught  you  gram- 
mar? Lord  knows  I  don't  know  any  grammar  myself,  much  less  could  1 
teach  you,"  to  which  Lincoln  responded,  "Bill,  don't  you  recollect  when 
we  worked  in  Offutt's  store  at  New  Salem  that  you  would  hold  the  book 
and  see  if  I  'could  give  the  correct  definitions  and  accurate  answers  to  the 
questions?"  "Yes,  Abe,"  said  Green,  "I  do  remember  that  but  that  was 
not  teaching  you  grammar."  "Bill,"  responded  the  President,  "That  was 
all  the  teaching  of  grammar  I  ever  had." 

Like  many  a  man  without  his  marvellous  command  of  English,  Lin- 
coln never  quite  accommodated  himself  to  some  of  the  technical,  arbitrary 
rules  of  grammar.  WThen  he  had  prepared  his  letter  accepting  the  nomi- 
nation for  the  Presidency,  he  handed  the  letter  to  the  State  Superintendent 
of  Education  for  check  on  his  grammar.  Mr.  Schoolmaster  said  there 
was  only  one  change  he  could  suggest.  "You  should  have  written  'not 
to  violate'  instead  of  'to  not  violate.'  Never  split  an  infinitive,  is  the  rule." 
Lincoln,  looking  at,  the  manuscript  with  a  puzzled  air,  said,  "So  you  think 
1  better  put  those  two  little  fellows  end  to  end,  do  you?"  And  so  it  is 
written — "not  to  violate." 

The  first  civil  action  against  him  arose  indirectly,  as  did  others 
directly,  out  of  his  ill-fated  entrance  into  business.  The  next  case 
against  Lincoln  arose  on  a  note  given  for  the  purchase  by  Berry 
and  Lincoln  of  one  of  the  stores  at  New  Salem.  A  rival  storekeeper 
named  Radford,  becoming  at  odds  with  the  Clary's  Grove  boys,  or- 
dered his  clerk  not  to  sell  them  more  than  two  drinks  of  liquor  on  any 
single  occasion.  Shortly  after,  when  the  gang,  riding  up,  was  refused 
more  than  two  drinks,  they  jumped  over  the  counter,  helped  themselves 
to  the  stock  and  then,  thoroughly  drunk,  proceeded  to  break  up  the  place. 
Barrel  heads  were  knocked  in,  bottles  broken,  showcases,  crockery  and 
windows  smashed,  and  the  doors  splintered.  Radford  .returning,  declared 
he  would  sell  out  to  the  first  man  who  made  an  offer.  Lincoln's  old 
friend,  William  Green,  unfortunately,  took  him  up  and,  just  as  the  trade 
was  being  closed  up,  Lincoln  strolled  over  and  suggested  to  Green  that 
they  make  an  inventory.  Green,  unfamiliar  with  the  term  and  thinking 
it  meant  some  sort  of  a  riotous  celebration,  replied,  "Abe,  I  don't 'believe 
this  store  will  stand  another  one  just  at  this  time."     However,  as  a  result 

12 


of  the   taking  of  inventory,    Green   sold   out  to   Berry  and   Lincoln,   who 
assumed   his   note  to   Radford. 

Before  the  end  of  the  year,  t'he  business  had  gone  to  pieces 
leaving  a  batch  of  unpaid  notes  with  no  assets.  Berry  helped  Lincoln 
pay  off  what  he  could  of  the  debts  during  his  few  remaining  months 
of  life  but  left  Lincoln  with  a  staggering  load  which  he  called  the 
"national  debt,"  which  took  him  fourteen  years  to  pay  off.  Judg- 
ment was  taken  against  Lincoln  on  this  note  for  $154  and  costs. 
Execution  was  issued  and  levied  on  his  horse,  saddle,  bridle,  compass, 
chain  and  other  surveying  instruments.  "Uncle  Jimmie"  Short,  who 
"liked  Abe  Lincoln,"  bid  these  in  and  gave  them  back  to  him.  Lincoln, 
with  tears  of  gratitude  in  his  eyes,  thanked  his  benefactor  and  said  "Uncle 
Jimmies,  I'll  do  as  much  for  you  some  time."  In  this,  as  in  all  other  things, 
Lincoln  kept  his  word.  He  paid  Short  in  full  and  years  afterward,  when 
the  old  man  was  penniless,  he  appointed  him,  without  solicitation,  an 
Indian  agent. 

Aside  from  the  Armstrong  murder  case,  Lincoln's  most  celebrated 
cases  were  the  McCormick  Reaper  patent  case  (McCormick  vs.  Manny, 
6  McLean,  U.  S.  Rep.  539) ;  the  case  of  Illinois  Central  Railroad  vs.  Mc- 
Lean County  (17  111.  291),  the  Rock  Island  Bridge  case  and  the  Sand- 
bar case.  Two  cases  in  the  United  States  Supreme  Court  are  Lewis  vs. 
Lewis,  7  How.  776  and  Forsythe  vs.  Reynolds,  14  Law  Ed.  729.  The 
McCormick  case  was  intriguing  to  him  both  because  it  would  display  his 
talents  against  the  famous  Reverdy  Johnson  (who  had  been  Attorney 
General,  of  the  United  States)  representing  McCormick,  while  Lincoln 
was  associated  with  Edwin  M.  Stanton  and  George  Harding  of  Philadel- 
phia on  the  side  of  the  plaintiff,  Manny;  but  also  because  it  would  involve 
discussion  of  agriculture,  well-known  to  him,  and  machinery,  a  favorite 
subject  of  his,,  since  he  was  himself  an  inventor.  Lincoln  studied  the 
testimony  and  law,  prepared  an  extensive  brief  and  journeyed  to  Cincin- 
nati, where  the  case  was  to  be  tried,  in,  great  hopes. 

There  he  met  Stanton  who  is  said  to  have  remarked,  "Where  did  that 
long-armed  baboon  come  from?"  and  that  he  wouldn't  associate  with 
"such  a  damned,  gawky,  long-armed  ape  as  that."  However  that  may  be, 
it  was  arranged  that  only  two  speeches  should  be  made  on  each  side  and 
Lincoln  lost  any  chance  to  use  his  argument  and  brief.  On  leav- 
ing Cincinnati  he  told  a  young  representative  of  his  client  who 
had  struck  up  an  acquaintance  with  Lincoln  and  took  long  walks 
in  the  evening  with  him  that  he  was  going  back  to  Illinois  to  prepare 
for  the  Eastern  lawyers.  "They  have  got  as  far  as  Cincinnati  now;  they 
will  soon  be  in  Illinois.  I  will  be  ready  for  them."  Lincoln's  lawyer- 
quality  of  making  use  of  anything  or  anyone,  whether  he  liked  them  or 
not,  is  seen  from  the  fact  that  he,  personally,  selected  Stanton,  a  Democrat, 
as  Secretary  of  War,  and  endured  his  waspishness  because  of  his  value, 
with  the  result  that  Stanton,  on  Lincoln's  death-bed,  said,  "Now  he  be- 
longs  to   the   ages." 

The  Rock  Island  bridge  case  also  interested  Lincoln  since  it  gave  him 
a  chance  to  utilize  the  knowledge  he  had  acquired  while  a  surveyor  and 
because  he  had  always  been  an  apostle  and  warm  advocate  of  public 
improvements.  The  Rock  Island  Railroad  had  built  the  first  bridge  across 
the  Mississippi  which  was  violently  opposed  by  the  river  interests,  who 
contended  that  the  'building  of  piers  in  the  river  constituted  an  obstruction 
to  navigation.  This  particular  suit  was  to  recover  damages  sustained  by 
a  steamboat,  the  Effie  Afton,  in  consequence  of  the  boat  being  driven 
against  thq  pier  by  the   current,  as  they  claimed. 

Chicago  had  a  population  at  that  time  of  100,000:  St.  Louis  150,000. 
The  river  towns  foresaw  their  doom  if  railroads  could  transport  freight 
over  these  bridges  without   unloading  and   trans-shipping  and   had   raised 

13 


a  pool  of  $500,000  for  defense.  After  12  days  of  trial  and  four  days  of 
argument,  in  which  Lincoln  made  the  closing  address  to  the  jury,  the 
jury  disagreed.  This  case  made  the  law  on  bridges  for  the  whole 
country. 

The  case  known  as  the  Sand-bar  case  had  to  do  with  the  title  to  a 
large  amount  of  valuable  land  added  by  accretion  to  the  riparian  lands  at 
Chicago.  The  Illinois  Central  case  is,  perhaps,  the  best  known  of  Lin- 
coln's cases  because  of  the  dispute  as  to  fees.  Under  its  charter  the  rail- 
road pays  to  the  State  a  part  of  its  earnings  in  lieu*  of  other  taxes  on  the 
capital  stock.  McLean  County,  in  spite  of  the  exemption  from  taxation 
contained  in  the  act,  assessed  the  property  of  the  railroad  just  as  it  did 
other  property.  Lincoln  himself  described  the  issue  as  "the  largest  law 
question  that  can  now  be  got  up  in  the  State."  It  would  run  into  millions 
and  bankrupt  the  company.  Although  beaten  in  the  lower  court  by  his 
old  partners,  Stuart  and  Logan,  he  won  on  appeal  to  the  Supreme  Court. 
When  he  presented  a  bill  for  $2,000,  the  official  who  handled  it  said,  "Why, 
this  is  as  much  as  a  first-class  lawyer  would  have  charged,"  adding  that 
it  was  "as  much  as  Daniel  Webster  himself  would  have  charged."  Lin- 
coln promptly  sued  for  $5,000,  afterwards  amended  by  Lincoln's  credit  of 
$200  paid,  judgment  and  execution  was  issued  and  paid. 

The  railroad  afterwards  excused  the  suit  by  claiming  that  it  was  not 
contested  but  that  "the  payment  of  so  large  a  fee  to  a  western  lawyer 
would  embarrass  the  general  counsel  with  the  board  of  directors  in  New 
York."  No  bad  feeling  ensued,  however,  because  Lincoln  afterwards  rep- 
resented the  railroad  in  several  suits  and  his  last  case  was  one  involving 
$121,000  in  which  he  defended  the  company. 

It  has  sometimes  been  said  that  Lincoln  was  not  a  great  lawyer. 
Possibly  this  misconception  has  been  based  upon  the  fact  that  many  of 
his  cases  did  not  involve  large  sums;  for  instance,  one  Supreme  Court 
appeal  (Byrne  vs.  Stout,  15  111.  180),  concerned  a  hog  worth  only  $3.00, 
but  this  theory  leaves  out  of  account  the  fact  that  his  practice  began  in 
a  pioneer  neighborhood,  not  yet  concerned  with  large  investments,  as 
well  as  the  fact  that  the  same  objection  would  rule  out  those  who  opposed 
him  in  these  cases.  As  we  have  seen,  these  were  men  of  large  caliber. 
His  standing,  as  compared  with  these  able  men,  is  shown  by  a  study  of  the 
results  which  he  obtained  in  his  contests  in  the  Supreme  Court  of  Illinois 
against  such  opponents. 

In  the  51  cases  where  he  appeared  alone,  he  won  31,  an  average  of 
.608.  In  the  124  cases  in  which  he  was  associated  with  others,  he  won  65, 
or  an  average  of  .524.  In  the  cases  in  which  he  brought  the  appeal,  his 
average,  when  he  was  alone,  was  .609  and  when  he  was  associated  with 
others  .521.  When  he  got  into  his  stride,  his  clients  were  the  most  im- 
portant in  the  community.  For  an  example,  among  others,  he  represented 
the  City  of  Springfield  and  the  town  of  Petersburg  as  well  as  judges  of 
the  courts  before  whom  he  practiced  whose  rights  had  been  attacked. 
He  acted  also  for  the  County  of  Logan  whose  County  Seat  was  named 
Lincoln.  As  to  this,  when  asked  whether  the  County  Seat  was  named 
after  him,  he  said,,  "Well,  it  was  named  after  I  was." 

He  represented,  also,  many  railroads — the  Illinois  Central,  the  Rock 
Island,  the  Chicago  &  Alton,  the  Terre  Haute  &  Alton  and  the  Peters- 
burg Railroads.  In  the  five  years  preceding  1860,  he  appeared  in  50 
cases  in  the  United  States  District  Court.  The  number  of  cases  in  which 
he  appeared  in  the  state  courts  is  not  known,  our  only  record  being  175 
cases  in  the  Supreme  Court  of  Illinois,  of  which,  it  is  to  be  noticed,  over 
one-half  occurred  after  his  return  from  Congress  in  1849.  These  cases 
have  been   cited  by  the   Supreme   Court  of  practically  every  state.     The 

14 


record    shows    that   Lincoln   was   one    of    the    truly    great   lawyers    of  his 
generation. 

Such,  in  a  very  brief  and  inadequate  form,  are  some  of  the  high 
points  in  the  life  of  Abraham  Lincoln  as  a  practicing  lawyer.  It  would 
seem,  superficially,  that  a  discussion  of  Lincoln  as  a  lawyer  would  end 
with  his  entrance  into  the  presidency.  With  most  men  and  under  most 
circumstances  this  would  be  true,  but  the  training,  methods  and  viewpoints 
of  a  lawyer  had  become  so  large  a  part  of  Lincoln  and  the  conditions  and 
problems  he  encountered  during  the  'Civil  War  were  such  that  any  com- 
plete account  of  Lincoln,  The  Lawyer,  must  necessarily  cover  his  political 
life  as  well  as  his  professional  activities. 

I  had  expected  to  be  able  to  open  up  this  branch  of  the,  subject,  even 
if  briefly,  but  I  find,  like  most  riders  of  hobbies,  that  I  have  strayed  too 
long  in  the  highways  and  byways  of  his  life  at  the  Bar.  You  have  been 
very  patient  with  me  so  far  and  that  makes  me  bold  to  trespass  further 
for  a  few  moments  to  outline  this  point  in  the  hope  that  you  will  your- 
selves explore  thoroughly  this  very  fruitful  field  of  American  Constitutional 
History. 

The  main  episodes  of  Lincoln's  political  life  prior  to  his  election  as 
President  were,  of  course,  the  Lincoln-Douglas  debates  and  his  Cooper 
Union  speech.  Study  the  Lincoln-Douglas  debates — not  as  history — but 
as  the  argument  of  a  great  lawyer  establishing  the  proposition  that  the 
extension  of  slavery  tended  to  discredit  republican  institutions.*  See  how 
Lincoln,  without  anger  or  vituperation,  and  refusing,  as  a  lawyer  does, 
to  be  led  into  personalities  or  factional  discussions,  fencing  them  off  with 
good  humor,  held  Douglas  to  one  question,  Is  the  Dred  Scott  decision 
good   law? 

His  friends  to  whom  he  read  it  told  him  before  the  Freeport  speech 
that  it  was  a  "damn  fool"  speech  and  would  lose  him  the  senatorship.  It 
did  lose  the  senatorship  but  it  won  him  the  presidency.  His  whole 
course  in  the  debate  was  a  maneuver  leading  up  to  the  question — fatal  to 
Douglas  whichever  way  he  answered  it — Can  the  people  of  a  territory  in 
any  lawful  way,  against  the  wish  of  any  citizen  of  the  United 
States,  exclude  slavery  from  its  limits  prior  to  the  formation  of  a  State 
Constitution?  A  great  lawyer  had  staked  his  whole  case  on  a  single,  sound 
point;  had  undergone  a  temporary  defeat  to  insure  ultimate  victory,  not 
only  for  himself  but  also  for  his  client,  the  people. 

In  the  same  way  and  with  the  same  thought  in  mind,  study  Lincoln's 
Cooper  Union  speech,  not  as  an  oration — although  it  is  one  of  the  great 
orations — nor  as  a  political  argument — although  it  made  him  President — 
but  as  the  argument  of  a  great  lawyer,  inspired  by  the  subject  and  the 
occasion. 

Douglas  had  said  that  our  Fathers,  when  they  framed  the  govern- 
ment under  which  we  live,  understood  the  question  of  slavery  just  as 
well  or  even  better  than  we  do  now.  Lincoln  endorsed  this  statement 
and  then  proceeded  to  show  the  record,  discussing  the  Continental  Con- 
gress, the  Ordinances  of  1784  and  1787,  the  Constitutional  Convention,  the 
first  Congress  under  the  Constitution,  the  action  of  Congress  since  that 
time,  the  Dred  Scott  case  and,  finally,  the  John  Brown  Raid. 

The  patient  days  of  labor  in  verification  of  fact  and  months  of  in- 
vestigation which  Lincoln  had  bestowed  upon  the  preparation  of  this 
address  bore  abundant  fruit.  The  audience  had  been  curious  to  see  this 
rude  child  of  the  people  and  exaggerated  rumors  of  his  wit — the  worst 
forerunner  of  an  orator — had  reached  the  East,  but  this  address  dispelled 
every  thought  of  him  as  anything  but  an  earnest,  high-minded,  scholarly 
man,  bred  to  the  knowledge  of  the  Republic's  history  and  political  institu- 

15 


tions,  who  had  mastered  the  problem  that  tormented  the  Nation.  With 
the  exception  of  a  few  "purple  patches"  of  vivid  phrase,  it  was  an  argu- 
ment which  convinced  a  great  audience,  including  all  the  learned  and 
cultured  of  his  party  in  New  York,  editors,  clergymen,  statesmen,  lawyers, 
merchants,  critics,  and  furnished  a  logical  and  firm  foundation  upon  which 
the  diverse  opinions  which  made  up  the  Republican  Party  could  unite 
for  one  great  purpose — the  preservation  of  the  Union. 

The  study  of  Lincoln's  attitude  and  handling  of  the  many  perplexing 
legal  questions  which  arose  during  the  presidency  is  an  interesting  and 
fruitful  subject,  but  we  shall  detain  you  no  longer  than  to  merely  enumer- 
ate some  of  them.  Lincoln  himself  put  the  fundamental  question  when 
he  asked,  "Must  a  government,  of  necessity,  be  too  strong  for  the  liberties 
of  its  own  people  or  too  weak  to  maintain  its  existence?"  Grotius  classified 
war  as  either  public  or  private.  What  was  to  be  the  legal1  status  of  the 
Civil  War?  Was  it  a  rebellion  and  were  the  Confederate  traitors,  or  was 
it  a  war,  in  which  case  they  would  be  belligerents?  You  will  find  that  the 
view  of  the  administration,  in  a  general  way,  was  that  it  was  an  insur- 
rection but  that  when  Lincoln  was  faced  with  the  question  in  the  Trent 
case,  his  training  as  a  lawyer  constrained  him  to  oppose  public  opinion 
by  liberating  Mason  and  Slidell. 

You  will  find  worthy  of  study  the  legal  position  of  the  war  powers 
under  the  Constitution.  There  were,  as  usual,  three  viewpoints:  the  strict 
Constructionists,  who  held  that  the  Government  should  stick  to  the  Con- 
stitution even  in  war;  the  loose  Constructionists,  who  held  that  the  Con- 
stitution was  not  operative  during  such  a  crisis  as  the  Civil  War  pre- 
sented; and  the  third  position  held  that  while  the  Constitution  is  binding 
during  war,  it  contains  extraordinary  powers  which  justify  severe  measures. 

President  Lincoln  construed  the  war  power  to  include  the  right  to 
determine  the  existence  of  rebellion  and  call  forth  the  militia  to  suppress 
it;  the  right  to  increase  the  regular  army  by  calling  for  volunteers  beyond 
the  authorized  total;  the  right  to>  suspend  the  habeas  corpus  privilege; 
the  right  to  proclaim  martial  law;  the  right  to  place  persons  under  arrest 
without  warrant  and  without  judicially  showing  the  cause  of  detention; 
the  right  to  seize  citizens'  property  if  such  seizure  should  become  indis- 
pensable to  the  successful  prosecution  of  the  war;  the  right  to  spend  money 
of  the  Treasury  of  the  United  States  without  Congressional  appropria- 
tion; the  right  to  suppress  newspapers;  and  the  right  to  do  unusual  things 
by  proclamation.  The  correctness  of  his  judgment  as  a  lawyer  is  en- 
forced by  consideration  of  the  fact  that,  as  a  rule,  though  not  without 
exception,  he  was  sustained  iby  the  courts. 

At  the  same  time  while  claiming,  as  many  contended,  extraordinary 
powers  far  beyond  the  ordinary  limits,  Lincoln's  training  as  a  lawyer 
led  him  in  practice  to  exercise  leniency  and  expediency  in  administration, 
as  was  shown  in  the  Vallandigham  case  and  in  what  Lincoln  himself  called 
his  "leg  cases" — technical  desertion  in  the  face  of  the  enemy — and  in  his 
ignoring  of  scandalous   and  venomous  articles  of  the  newspapers. 

Perhaps  the  most  striking  example  of  the  effect  of  Lincoln's  years  at 
the  Bar  upon  his  career  and,  conduct  as  a  statesman  is  seen  in  the  study 
of  the  Emancipation  Proclamation.  He  was  urged  from  the  very  begin- 
ning of  the  War  by  the  Abolitionist  Party  to  free  the  slaves  as  a  measure 
of  justice  and  the  carrying  out  of  their  theory  that  the  war  was  fought 
for  the  purpose  of  ending  slavery.  As  a  lawyer,  Lincoln  was  strongly 
imbued  with  the  sense  of  the  right  of  property  and  the  fact  that 
slavery  had  grown  up  under  the  protection  of  the  law.  He  had, 
therefore,  made  valiant  attempts  to  put  through  measures  for  compensa- 
tion to  those  who  should  emancipate  their  slaves.  In  the  end,  he  issued 
the  proclamation  as  a  war  measure  alone. 

16 


His  years  as  a  lawyer  had  taught  him  marvelous  powers  of  condensa- 
tion and  concentration  of  statement.  He  said,  "I  believe  I  shall  never  be 
old  enough  to  speak  without  embarassment  when  I  have  nothing  to  say." 
Again,  he  said,  "I  am  never  easy  when  I  am  handling  a  thought  until  I 
have  bounded  it  north  and  bounded  it  south;  bounded  it  east  and  bounded 
It  west."  He  said  once  of  another,  "He  can  compress  the  most  words 
into  the  smallest  ideas  of  any  man  I  ever  met."  His  Gettysburg  address, 
which  followed  a  two-hour  oration,  contains  only  270  words.  Perhaps 
none  of  his  state  papers  illustrate  this  great  faculty  more  than  the  close 
of  the  Emancipation  Proclamation:  "And  upon  this  act,  sincerely  be- 
lieved to'  be  an  act  of  justice,  warranted  by  the  Constitution  upon  military 
necessity,  I  invoke  the  considerate  judgment  of  mankind  and  the  gracious 
favor  of  Almighty  God."  You  will  notice  t'hat  by  the  use  of  15  words,  he 
announced  three  fundamental  grounds:  First,  Justice;  Second,  Constitu- 
tional Authority;    Third,   War   Necessity. 

Lincoln  was  a  master  of  words,  the  possessor  of  a  unique  and  in- 
dividual style  founded  upon  his  assimilation  of  a  few  great  books — the 
Bible,  Shakespeare,  Blackstone,  Aesop's  Fables,  Pilgrims'  Progress  and 
Robert  Burns.  As  to  each  of  these,  he  'became  "the  master  of  one  book," 
especially  of  what  Lowell  called  "the  grand  simplicities  of  the  Bible." 
His  phrases  will  last  as  long  as  the  English  language  exists. 

"The  mystic  chords  of  memory  stretch  from  every  battlefield  and 
patriot  grave  to  every  loving  heart  and  hearthstone,  and  over  this  broad 
land  will  yet  swell  the  chorus  of  the  Union  when  again  touched,  as  surely 
they  will  t>e,  by  the  better  angels  of  our  nature." 

"I  leave  you  hoping  that  the  lamp  of  liberty  will  burn  in,  your  bosom 
.  until  there  shall  no  longer  be  a  doubt  that  all  men  are  created  free  and 
equal." 

"No  law  is  stronger  than  the  public  sentiment  where  it  is  to  be  en- 
forced." 

"Let  us  have  faith  that  right  makes  might,  and  in  that  faith  let  us 
to  the  end  dare  to  do  our  duty  as  we  understand  it." 

Lincoln  'became  the  active  director  of  an  army  of  2,000,000  men,  of 
whom  300,000  perished,  engaged  in  the  greatest  war  of  'his  century  and  the 
greatest  war  until  our  day.  The  Rebellion  rwas  the  first  test  of  a  democ- 
racy at  war,  faced  by  a  struggle  for  life,  in  which  Lincoln  developed  a 
new  technique   in    dealing  with   this   unprecedented   problem. 

Thirty-five  diligent  years  in  which  he  burned  the  midnight  oil  in  the 
study  of  the  origin  and  development  of  our  Constitution  and  Government, 
enabled  him  to  master  Constitutional  problems  more  perplexing  and  more 
intricate  than  those  presented   to   any  one  man   in   the   course   of  history. 

Conceding,  as  we  do,  the  peculiar  and  inherent  strength  of  his  personality 
and  genius,  we  submit  that  the  24  years  of  Lincoln's  work  as  a  lawyer 
was  the  training  ground  which  produced  our  greatest  American,  a  shining 
and  replendent  figure  of  the  history  of  all  time,  ABRAHAM  LINCOLN, 
The   Great  Emancipator. 


17 


UNIVERSITY  OF  ILLINOIS-URBANA 

973.7L63B6EV1A  C001 

ABRAHAM  LINCOLN  AS  A  LAWYER.  PITTSBURGH 


3  0112  031799346 


